United States v. Roberto Marquez

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 21, 2022
• Docket: 21-50257
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 21 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-50257

Plaintiff-Appellee, D.C. No. 3:20-cr-02044-H-1

v. MEMORANDUM* ROBERTO CARLOS MARQUEZ,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding

Submitted July 12, 2022**

Before: SCHROEDER, R. NELSON, and VANDYKE, Circuit Judges.

Roberto Carlos Marquez appeals from the district court’s judgment and

challenges the 87-month sentence imposed following his jury-trial conviction for

importation of methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Marquez contends that the district court erred by denying his request for a

minor role adjustment under U.S.S.G. § 3B1.2 because it failed to compare his

culpability to that of other likely participants in the drug-smuggling operation. We

review the district court’s interpretation of the Guidelines de novo, its factual

findings for clear error, and its application of the Guidelines to the facts for abuse

of discretion. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir.

2017) (en banc).

Marquez’s cursory request for a minor role adjustment before the district

court failed to present any arguments regarding his relative culpability, and

throughout the proceedings he provided little and inconsistent information about

the offense. On this record, we conclude that the district court did not err in

denying a minor role adjustment because Marquez failed to meet his burden to

demonstrate that he was “substantially less culpable than the average participant in

the criminal activity.” U.S.S.G. § 3B1.2 cmt. n.3(A); see also United States v.

Diaz, 884 F.3d 911, 914 (9th Cir. 2018) (defendant bears the burden of establishing

entitlement to minor role adjustment); id. at 916 (relative culpability is determined

by comparing defendant’s involvement to that of “all likely participants in the

criminal scheme for whom there is sufficient evidence of their existence and

participation”).

AFFIRMED.

2 21-50257